Salazar v. Buono: Sacred Symbolism and the Secular State

After oral argument, Salazar v. Buono looked like it might be
a dud.As Adam Liptak observed in the New York Times, the Justices spent most
of their energy pressing then-Solicitor General Elena Kagan and her opponent,
Peter Eliasberg of the ACLU, on the case's tangled procedural history, and "only
Justice Antonin Scalia appeared inclined to reach the Establishment Clause
question" that gave rise to the legal controversy.[1]But, in the intervening months, the case has gotten more and more
interesting.First, most members of the
Court did—in at least some way—reach
the substantive merits in the decision; ironically, only Justices Scalia and
Clarence Thomas would have disposed of the case on standing grounds.And second, in a twist no one saw coming, the
Latin cross at the heart of the dispute disappeared just a few days after the
Court announced its decision.[2]As a result, a case that seemed doomed to
founder on its awkward procedural posture has, at least fleetingly, brought the
Establishment Clause back into the national spotlight.Given the complexity of the procedural
questions, however, it is probably worthwhile to revisit the case's history
before moving on to the more intriguing substantive questions the Court's
opinions present.

The controversy
centers on an eight-foot-tall cross, made of metal tubing and painted white,
perched atop a rocky outcropping called Sunrise Rock, in the heart of the
Mojave Desert National Preserve.The
Veterans of Foreign Wars first put up a wooden cross at the site—on what was
then Bureau of Land Management property—in 1934, along with a plaque memorializing
the "Dead of All Wars"; though the plaque has since disappeared, and the cross
has been replaced several times.[3]For being "in the middle of nowhere," as Chief Justice John Roberts put
it, the cross has been the focus of surprising attention over the last ten
years.[4]The trouble started in 1999, when the National Park Service denied a
local man's request to build a Buddhist stupa at the site and announced its decision
to take the cross down instead.[5]Apparently shocked by this development,
Congress promptly denied the Park Service any appropriation to remove the
cross; then designated it a national memorial to veterans of World War I; and,
for good measure, prohibited the use of federal money to "dismantle" any World
War I memorials.[6]

In the meantime, Frank
Buono, a former Park Service administrator, brought suit in federal district
court, alleging that the presence of the cross on government property "not open
to groups or individuals [wishing] to erect other freestanding, permanent
displays" violated the Establishment Clause.[7]The court agreed, concluding that "the presence of the cross on federal
land conveys a message of endorsement of religion," and permanently enjoined
the government from allowing its display.[8]While the government's appeal was pending,
the Park Service hid the cross under a plywood box,[9]
and Congress directed the Secretary of the Interior to convey the disputed acre
of land (now a National Memorial) to the VFW in exchange for a similar parcel
elsewhere in the Mojave Preserve—with the proviso that the property would
revert to the government if it was no longer "maintained as a war memorial."[10]The Ninth Circuit agreed with the District
Court's Establishment Clause analysis, though it expressly reserved judgment on
whether the proposed land exchange might solve the constitutional problem.[11]

The government chose
not to appeal the Ninth Circuit's decision and that judgment—including its
confirmation of Buono's standing to sue—became final.Buono, however, took preemptive action by
asking the District Court to enforce or modify the existing injunction to
prevent the Secretary of the Interior from following through with the land
swap.[12]The District Court agreed with Buono's
contention that the Secretary's exchange scheme was essentially a sham: "In
light of [its unusual] history . . . the proposed transfer
of the subject property can only be viewed as an attempt to keep the Latin
cross atop Sunrise Rock without actually curing the continuing Establishment
Clause violation."[13]Accordingly, the court permanently
enjoined the exchange as "an unlawful attempt to evade" its earlier injunction,[14]
which the Ninth Circuit subsequently affirmed.[15]It was at this point that the Supreme Court
finally got involved.[16]

The upshot of this tortured
procedural odyssey—particularly the government's decision not to appeal the
original injunction—is that the case presented the Court with two fairly narrow
questions: (1) whether the District Court's 2005 order enjoining the land
exchange was, in essence, a new proceeding, such that the government might
renew its challenge to Buono's standing; and (2) whether the District Court had
mistakenly concluded that the land swap would not remedy the Establishment
Clause violation.Only Justices Scalia
and Thomas answered the first question affirmatively,[17]
while two others—Justice Samuel Alito and Chief Justice Roberts—joined in
Justice Anthony Kennedy's conclusion that the District Court had erred on the
merits.[18]The remaining four Justices answered no to
both questions.[19]

Although the
procedural issues are certainly interesting in their own right, I want to
explore several of the substantive implications of the Court's decision.The opinions give rise to two particularly
interesting questions—one doctrinal, the other more prudential and
structural.Doctrinally, as Salazar is the first Establishment
Clause case decided since Justice Sandra Day O'Connor's retirement, it offers
the first actual glimpse into the future of her pet "endorsement" test—and its
future seems, to me, to be in some doubt.Second, Justice Kennedy's lengthy discussion of the secular purposes
behind the government's efforts to preserve the cross memorial raises—for me,
at least—troubling questions about the Court's increasing desire to strip
sacred symbols of their religious meaning and significance.If this is in
fact happening, I suggest it is evidence that we have lost sight of one of the
fundamental purposes of religious disestablishment—protecting religion from the
state's destructive power.But I begin
with the doctrinal question.

I. The Future of the Endorsement Test

The District Court,
the Ninth Circuit, and three of the Supreme Court dissenters evaluated Buono's
challenge within the doctrinal framework of the so-called endorsement test,
which asks whether a reasonable observer would perceive that the state has "endorsed"
religion.[20]This test has evolved over the last three
decades (with Justice O'Connor's careful nurturing) into the Court's principal
means of assessing whether a religious display on public land has the "primary
effect" of advancing religion, per the second prong of the Lemon test.[21]O'Connor's efforts to refine Lemon began in 1984 with her concurrence
in Lynch v. Donnelly, a case that challenged
a Christmas display in a public park in Pawtucket,
Rhode Island.[22]The majority upheld the display under the Lemon test, and O'Connor concurred in
the judgment, writing separately "to suggest a clarification of our Establishment
Clause doctrine."[23]In her view, the establishment touchstone, at
least in the context of religious displays, is whether the government's actions
amount to an endorsement of religion.[24]Thus, she suggested that Lemon's first two prongs are best understood as an effort to
determine whether the government intends
such an endorsement, and whether the government activity in fact conveys such an endorsement.[25]The third prong, addressing the potential of
an "excessive entanglement" between church and state, is less relevant in the
context of a religious display.[26]

Over the next few
years, O'Connor's endorsement test gained support in the lower federal courts,
and in 1989 she managed to get the support of a majority of her colleagues, at
least regarding the proper application of Lemon'ssecond prong.[27]In Allegheny
County v. ACLU, the Court again addressed several religious holiday
displays on public property; this time, in Pittsburgh.[28]Using O'Connor's approach, the majority evaluated
the likelihood that a reasonable observer might perceive government endorsement
of religion and, based on the specific symbolism and context, invalidated a
crèche in the central stair of the city courthouse.[29]At the same time, it allowed the display of a
Christmas tree and a Menorah in a public park.[30]But just as notable as the majority's
acceptance of the endorsement test was Justice Kennedy's impassioned dissent,
in which he both decried O'Connor's framework as "flawed in its fundamentals
and unworkable in practice,"[31]
and went to great lengths to demonstrate the "hostility" her test expresses
towards our national religious heritage.[32]

In truth, it is the "flawed
in its fundamentals" criticism that lies at the heart of Kennedy's disagreement
with O'Connor.[33]At root, Kennedy—like several prominent
scholars[34]—views the Establishment Clause as
complementing the Free Exercise Clause in protecting individual religious "duty"
from state intrusion; not, as the endorsement test seems to suggest, as the guarantor
of a "secular state."The religious duty
conception of disestablishment sees a First Amendment violation only when the
government forces citizens to choose between their obligations to the state and
their obligations to God.To put it more
bluntly, democratic government should not require a choice between jail and
eternal damnation.[35]In this conception, an established church is
simply an especially virulent species of this tyranny. The secular state view of disestablishment,
which underlies the endorsement test, recalls the French doctrine of laicité: the state should remain totally
neutral on religious questions and should do so by setting aside all religion
and religious reasoning in favor of secular rationales and policies.

Although the different
approaches may seem a little like splitting theoretical hairs, the divergence
of these first principles can, and sometimes does, lead to dramatically
different results in particular cases.Those who support the duty conception often see efforts to ensure a
secular state as "hostile" towards religion, while secular state adherents
worry that the state's imprimatur on particular religious symbolism or speech
makes unrepresented groups feel excluded from their own government.The doctrinal result of all this is, for
Kennedy, that coercion against duty,
not government endorsement,
represents the true establishment evil.For Kennedy, this coercion might be direct or indirect—it may result
from psychological kinds of pressure, as well as the threat of force—but it has
nothing to do with endorsement, unless that endorsement rises to the level of
coercion.[36]

Kennedy's view of
coercion was, for a time, the only one—and the only alternative to O'Connor's
endorsement test.[37]Lee v.
Weisman changed all that, when Kennedy wrote for a majority that struck
down a nonsectarian benediction at a middle school graduation.[38]Despite O'Connor's protestations in
concurrence, Kennedy did not employ the endorsement test, but rather concluded
that the benediction presented "a particular risk of indirect coercion."[39]This result drew a vigorous dissent from
Scalia, who, along with Chief Justice William Rehnquist and Justices Byron
White and Thomas, agreed that coercion is the relevant question, but rejected
the "boundless, and boundlessly manipulable, test of psychological coercion" that Kennedy described.[40]Rather, for Scalia, the only kind of coercion
that gives rise to an establishment concern is direct—that accomplished by "force of law and threat of penalty."[41]And so, after Lee, the Court had articulated three distinct establishment tests
applicable in the religious speech context: O'Connor's endorsement test,
Kennedy's "indirect coercion" test, and Scalia's "direct coercion" test.

For the most part, O'Connor's
approach has maintained the support of a tenuous majority since 1992,[42]
but, with her retirement in 2006, it was unclear whether the test would long
survive.Indeed, Salazar was the first true religious display case since her
departure, and, as such, it presented an opportunity to assess the future of
the endorsement test with a quick (and concededly crude) count of heads.Both Justices Ruth Bader Ginsburg and Sonia
Sotomayor joined Justice John Paul Stevens's dissent, which expressly relied on
the endorsement test and upheld the Ninth Circuit's application of the same.[43]In Salazar,Justice Stephen Breyer wrote a separate
dissent in which he declined to reach the Establishment Clause question—arguing
that the Ninth Circuit's unappealed 2004 decision settled the issue—and would
instead have upheld the 2005 order as a valid exercise of the District Court's
discretionary enforcement of its own injunction.[44]In the past, however, Breyer has largely
stood behind O'Connor's framework—though he has, on occasion, given it his own
spin.[45]Therefore, I think it is safe to count at
least four votes in favor of the endorsement test.It is probably equally safe, however, to
count at least three votes—Kennedy, Scalia, and Thomas—in staunch opposition,
as the opinions in Salazar hardly
suggest that the "coercion" coalition has had any change of heart since Lee.

This leaves only the
recent Bush appointees, Roberts and Alito, to consider.It is difficult to draw any meaningful
conclusions from Roberts's short (and, frankly, strange) concurrence in Salazar.[46]The Chief Justice is a passionate and adroit
doctrinalist, however, and the fact that he was not much concerned with the
precise nature of the government's effort to preserve the cross suggests that
he may put little stock in the nuances of the endorsement approach.[47]Justice Alito's concurrence provides a little
more insight into his views, but again, it is no smoking gun.The only direct clue he offered is an
enigmatic bit of speculation: "Assuming that it is appropriate to apply the
so-called ‘endorsement test,' this test would not be violated by the land
exchange."[48]This is hardly a statement of unconditional
support, though the remainder of his opinion—which would have overturned the
District Court's order without remand—indicates that he might be sympathetic to
the kinds of concerns that underlie the endorsement analysis.He gives significant weight to factual
matters such as the monument's original purpose, the number of people likely to
see it, and Congress's intentions in undertaking the land swap.[49]All of this suggests that Alito may be
willing to work within the endorsement framework.But he did vote to uphold the cross display,
which is suggests that, at the very least, his ideas about what constitutes "endorsement"
may be very different than O'Connor's.Thus, even if the endorsement test survives in name, it may end up being
something closer to Kennedy's indirect coercion test in application.

This last thought
raises the question, though: what's in a name?After all, it might not matter whether we call the test "endorsement" or
"indirect coercion" if the analysis often produces the same outcome.But I think there is a real and important
distinction, which I hinted at above.The doctrinal test the Court adopts necessarily reflects its conception
of exactly what the Establishment Clause guarantees: Is it the promise of a "secular"
state, as a prohibition on government endorsement would suggest?Or does it protect against a particularly
problematic species of Free Exercise intrusion; the likelihood that an
established church will cause the state to coerce us against conscience?And over the last 30 years or so, the tension
and competition between these different, underlying principles has resulted in
a number of subtle doctrinal compromises that are potentially destructive of
our most fundamental disestablishment goals.Indeed, Salazar presents a
disquieting example of this phenomenon, as we see Kennedy—basically a believer
in the "duty" conception of disestablishment—try to squeeze the Latin cross
through the endorsement test by suggesting that it has lost its religious
import and become a secular monument.[50]This argumentative approach presents some
very real theoretical problems, which the next Section explores in a little
more detail.

II. The Sacred and the Secular

Justice Kennedy's
plurality opinion in Salazar highlights
a troubling question about the state's role in both assessing and shaping the
public meaning of religious symbols; one which emerges, I suggest, from the
same fundamental disagreement over the meaning of disestablishment.For Kennedy, given Salazar's procedural posture, the only issue before the Court was
whether the District Court "engage[d] in the appropriate inquiry" before
enjoining the land exchange as an effort to evade its earlier judgment.[51]Where the lower court went wrong, he wrote,
was in its failing adequately to consider the secular purpose behind the cross's
original placement, the secular meaning it has come to have for many local people
over the last 75 years, and the "dilemma" Congress faced in its efforts to cure
the establishment violation without "conveying disrespect for those the cross
was seen as honoring."[52]Ultimately, Kennedy claims that the District
Court did not fully appreciate that this particular cross is a symbol "that has
complex meaning beyond the expression of religious views."[53]While all this may be true, it fails to
explain why—if the cross's religious meaning is not central to its symbolism—the
easiest solution would not be to replace it with a non-religious memorial.Despite Kennedy's protestations about the
monument's lengthy history, over which period "the cross and the cause it
commemorated [became] entwined in the public consciousness,"[54]
it seems disingenuous (some might say sacrilegious) to deny that the symbol's
deep religious significance adds something essential to the mix.

But maybe not.Maybe Kennedy is right when he claims that "a
Latin cross is not merely a reaffirmation of Christian beliefs [but] a symbol
often used to honor and respect those whose heroic acts, noble contributions
and patient striving help secure an honored place in history for this Nation
and its people."[55]But if that is true, if the cross has somehow
lost much of its most central and profound meaning by virtue of its association
with the state and its objectives, then I fear we have a real disestablishment
problem on our hands.Stanley Fish
captured this growing concern in a recent New
York Times editorial: "It is one of the ironies of the sequence of cases
dealing with religious symbols on public land that those who argue for their
lawful presence must first deny them the significance that provokes the desire
to put them there in the first place."[56]Indeed, in this particular oral argument a "visibly
angry" Justice Scalia scolded Peter Eliasberg for suggesting that the Latin
cross is, in fact, a Christian symbol.[57]It is this last absurdity that highlights
what is most disturbing about the current doctrinal trend.In truth, it is hard to blame the advocates
for their efforts to empty symbols like the cross of their religious content;
they simply tailor their arguments to the Court's doctrinal landscape.And in recent years the Court has been a
willing co-conspirator, if not the instigator, in a troubling effort to see the
sacred as secular.[58]

This suggests two
equally problematic possibilities: (1) the Court itself is actively working to
diminish the religious meanings of sacred symbolism; or (2) the Court is
willing to accept and sanction the idea that long association with government
can wash away a religious symbol's central significance.If either (or both) of these propositions is
true, then I fear that we have been poor stewards of the disestablishment
promise.Most, if not all, establishment
scholars recognize that one of the clause's central theoretical purposes is to
protect religion from the corruptive power of the state.[59]This strand of disestablishment theory, often
called the "evangelical" strand, has long been associated with Roger Williams's
efforts to wall off the "garden" of the church from the "wilderness" of the
state.[60]And if Kennedy is correct about the "secularizing" power an association
with state objectives can have on sacred symbols, then it seems that Williams's
garden is in real danger of being overrun.This is, in fact, the very danger that Mark DeWolfe Howe warned of in
his prescient book, now more than forty years old, on the modern elevation of
the "rationalistic" conception of disestablishment.[61]Indeed, if all Kennedy says is true, Frank
Buono need not waste any more energy trying to get the cross off Sunrise Rock;
the government has done it for him.Thus,
however exciting Salazar may seem to
religious enthusiasts as a short-term win, one cannot help but suspect that, in
the long run, these same people may come to believe that victory came at too
steep a price.[62]

Conclusion

For a case that seemed
destined to disappoint, Salazar v. Buono
ended up providing Establishment Clause observers with some surprising
late-term fireworks.Not only did the
Justices, by and large, reach and comment on the substantive constitutional
question, but they did so in ways that highlight interesting and problematic
questions about the Court's past and future treatment of religious symbolism on
public land.On the one hand, the various
opinions seem to suggest that the endorsement test, at least as we have known
it, faces an uncertain future.On the
other hand, Justice Kennedy's plurality opinion implicitly bows to the secular
purpose and meaning inquiries at that test's heart, but argues that the
District Court failed to give adequate consideration to the complex interests
the cross on Sunrise Rock has come to represent.It is no mystery why Kennedy and others feel
compelled to treat the cross and other religious symbols on public land as "predominantly
secular";[63]
they are reacting to a doctrinal culture they see dismantling valued pieces of
our cultural heritage in its vigilance to insulate the state from the
threatening influence of religion.But
this current tactic—the effort to downplay religious meanings in order to
minimize the threat—is counterproductive; indeed, it seems far more hostile to
religion than the endorsement doctrine to which Kennedy has so vehemently
objected.Better, one would think, to
protest forthrightly the doctrine of the secular state than to play along in
ways that threaten to abandon the "other" disestablishment goal: protecting the
sanctity and vitality of the American religious garden from the wilderness of
the bureaucratic state.

But I am trying hard
here not to take a side in this fight.I
want to suggest only that Salazar
sets the important doctrinal and structural issues in bold relief, and asks
very old questions in slightly new ways.In so doing, it illustrates some interesting connections between
divergent first principles and our modern doctrinal battles—and highlights at
least one potential long-term consequence of the coercion coalition's current
argumentative approach.While the
opinions in Salazar do not provide
any clear or definitive answers, they at least set the stage for a potentially
new, post-O'Connor era of Establishment Clause jurisprudence.And it will be quite interesting indeed to
see what this era brings for American religious and political life.

————

*. Assistant Professor of Law, DrakeLawSchool.Thanks to the other participants in this symposium
for their insightful comments and suggestions.Thanks also to the editors of the Colloquy for their hard work, and to
my students for their inspiration and creativity.

29. Id. at 598–602.The Court had already suggested that O'Connor's
test seemed to ask the right questions just a year after Lynch, in School Dist. of
Grand Rapids v. Ball, 473 U.S. 373, 389 (1985) (link).

33. The
"unworkable in practice" criticism centers on the problem of assessing what a "reasonable
observer" might perceive.This inquiry,
however, seems no more difficult than that into the "psychology" of coercion
that Kennedy suggests.Lee v. Weisman,
505 U.S. 577, 593–94 (1992) (link).

37. In
her contribution to this symposium, Professor Dolan characterizes the split in
religious symbolism doctrine as one between "endorsement" and "history." Mary Jean Dolan, Salazar v. Buono: The Cross Between Endorsement and History,
105 Nw. U. L. Rev. Colloquy 42 (2010), http://www.law.northwestern.edu/lawreview/colloquy/2010/21/LRColl2010n21Dolan.pdf (link).She is, of course, correct to note these two
positions in recent cases, but I would suggest that "history" arguments
actually occur within the larger framework of the endorsement test: History
advocates are simply trying to show that the symbolism has a secular purpose,
and thus is not an endorsement of religion.I contend that—if they had the votes—Justices Kennedy, Thomas, and
Scalia would toss out the endorsement framework altogether and focus instead on
coercion.This, I think, is this
ideological divide that is really at stake after O'Connor's departure.

45. See Van Orden, 545 U.S. at 699–701
(2005) (Breyer, J., concurring) (link). In Van
Orden,Justice Breyer accepts the
fundamentals of the endorsement approach, but he opines that "no exact formula
can dictate a resolution in such fact-intensive cases." Id.
at 700.Instead, Breyer engages in an
analysis of the combined "religious" and "secular moral" messages that such
longstanding monuments may express. Id. at 701.Indeed, Breyer's approach here is very
similar to that which Kennedy takes in Salazar.

46. Salazar, 130 S. Ct. at 1821 (Roberts,
C.J., concurring).I say the Chief
Justice's concurrence is strange because he is prepared to decide the case
based solely on the respondent's questionable concession at oral argument
suggesting that there would be no Establishment problem if the government took
the cross down, transferred the land, and the private party then put a new
cross up.Not only is this a dubious
concession, but it also fails to address the primary endorsement issue in the
case, which is the extent of the government's efforts to preserve the cross.

50. It
may seem incongruous that Kennedy would operate within the endorsement test
here, which he has roundly rejected in the past.But, to be fair, Kennedy was essentially
saddled with this approach given Salazar's
procedural history.He could only answer
the narrow question of whether the District Court had enforced its own
injunction (which was based on an endorsement analysis) correctly.I suspect that if the substantive question
were squarely presented, he might happily have applied the indirect coercion
test and avoided any discussion whatsoever of secular purpose or meaning. This circumstance is one of the consequences
of piecemeal adjudication that Professor Roy rightly laments in her contribution
to this symposium.See Lisa Shaw Roy, Salazar v. Buono: The Perils of Piecemeal
Adjudication, 105 Nw. U. L. Rev.
Colloquy 72 (2010), http://www.law.northwestern.edu/lawreview/colloquy/2010/23/LRColl2010n23Roy.pdf (link).

60. See, e.g., Mark DeWolfe Howe, The
Garden and the Wilderness: Religion and Government in American Constitutional
History (1965) (arguing for a renewed emphasis on the "evangelical"
thesis).The famous passage from Roger
Williams is as follows:

[W]hen
[the Christians] have opened a gap in the hedge or wall of Separation between
the Garden of the Church and the Wilderness of the world, God hath ever broke
down the wall it[]self[], removed the Candlestick, etc., and made His Garden a
Wilderness[], as at this day.And that
therefore if he will ever please to restore his garden and Paradi[s]e again, it
must of necessit[y] be walled in peculiarly unto himself[] from the world, and
that all that shall be saved out of the world are to be transplanted out of the
Wilderness of the world . . . .

Roger Williams, "Mr.
Cotton's Letter Lately Printed, Examined and Answered" (1644) reprinted in 1 The Complete Writings of Roger Williams 108 (Russell &
Russell, Inc. 1963). In his contribution to this symposium, Professor Lund points out the danger to religion that too close an association of its symbols with the state presents.Christopher Lund, Salazar v. Buono and the Future of the
Establishment Clause, 105 Nw. U. L.
Rev. Colloquy 60 (2010), http://www.law.northwestern.edu/lawreview/colloquy/2010/22/LRColl2010n22Lund.pdf (link).

61. Howe, supra note 60,
at 10–11 (lamenting the Court's efforts to prove that "the only theory of
separation known in American constitutional history is the Jeffersonian or
rationalistic").

62. For
an interesting early perspective on this issue, see Rod Dreher, Commentary:
The Cross Without Christ, Beliefnet (May
5. 2010),
http://blog.beliefnet.com/roddreher/2010/05/the-cross-without-christ.html (link).

63. The
phrase is from taken from Justice Breyer's concurrence in Van Orden.545 U.S. at 702
(Breyer, J., concurring).